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Case Summaries

Injury & Tort Law

[06/11] Formet v. Lloyd Termite Control Co.
In plaintiff's suit against a licensed pest inspection company, alleging that she sustained injuries from falling from a balcony as the result of the defendant company's failure to discover and disclose a specified area of dry rot damage, trial court's grant of summary judgment in favor of defendant is affirmed where: 1) FSR Brokerage, Inc. v. Superior Court, 35 Cal.App.4th 69 limits the duty owed by pest inspectors to third parties; 2) defendant's inspection did not create a duty to plaintiff; and 3) an analysis of the Rowland factors weighs in favor of a finding of no legal duty.

[06/11] Waffle House, Inc. v. Williams
In a suit for sexual harassment against an employer under the Texas Commission on Human Rights Act (TCHRA) and common law negligent supervision and retention, judgment of the court of appeals is reversed and remanded as, where the gravamen of a plaintiff's case is TCHRA-covered harassment, the Act forecloses common law theories predicated on the same underlying sexual harassment facts, and here, plaintiff's negligence claim is premised on the same conduct that the TCHRA deems unlawful.

[06/11] Benoit v. USDA
In an action by Fourteen African American farmers alleging that the U.S. Department of Agriculture discriminated against them on the basis of race (and, in one case, gender) in administering the agency's federally funded credit and benefit programs, summary judgment for defendants is affirmed where: 1) in order to exhaust their administrative remedies, the plaintiffs would have had to request a formal hearing before an Administrative Law Judge; and 2) plaintiffs suggested no reason to think a formal hearing of that nature would not have proceeded expeditiously.

[06/10] Davis v. Oregon County
In an action by a pretrial detainee at the Oregon County jail asserting that defendants violated his rights in failing to ensure his safety after a fire broke out at the jail, summary judgment for defendants is affirmed where: 1) plaintiff's allegations regarding the correctional officers' disregard for the jail's smoking policy was contradicted by the undisputed facts in the record demonstrating the officers' sweeps for contraband as recently as five days before the fire; 2) the jail's inoperable sprinklers and lack of extra fire equipment such as oxygen tanks did not, standing alone, amount to deliberate indifference in light of the officers' actions in searching for contraband, as well as the fire extinguishers and smoke detectors that were present at the time of the fire; and 3) the conditions at the Oregon County jail were not so dangerous as to violate contemporary standards of decency.

[06/10] Brandy B. v. Eden Central Sch. Dist.
In an action against defendants Eden Central School District and Child and Family Services of Erie County (CFS) for damages resulting from an alleged sexual assault committed by an 11-year-old student upon a five-year-old student, summary judgment for defendants is affirmed where the alleged sexual assault was an unforeseeable act that, without sufficiently specific knowledge or notice, could not have been reasonably anticipated by the school district.

[06/10] G.R. v. Intelligator
In an attorney's special motion to strike plaintiff's complaint, arising from her representation of plaintiff's ex-wife in postmarital dissolution proceedings, trial court's judgment is affirmed where: 1) attorney's filing a copy of plaintiff's credit report in support of a motion was protected petitioning activity; 2) plaintiff failed to meet his burden of demonstrating probability of success on his claims; and 3) plaintiff failed to show either that the trial court abused its discretion in awarding the attorney fees and costs or that it erred in denying his motion for reconsideration.

[06/10] Munn v. Briggs
In plaintiff's petition in probate court against his sister and brother-in-law alleging tortious interference with his inheritance expectancy, probate court's order sustaining without leave to amend defendants' demurrer is affirmed as, because plaintiff had an adequate remedy in probate to assert his fraud/undue influence claim against defendants, under the present circumstances, a cause of action in tort of interference with an expected inheritance will not be recognized.

[06/09] Anaya-Burgos v. Lasalvia-Prisco
In plaintiff's suit against an oncologist and others, claiming that the death of his wife was the result of defendants' negligent acts and omissions that induced her to purchase their "cancer vaccine" treatment and forego conventional cancer treatments, a grant of defendants' motion for judgment as a matter of law is vacated and remanded as, plaintiff put forth sufficient evidence including expert testimony, from which a reasonable jury could have concluded - and did conclude - that defendants' breach of the standard of care towards the wife caused her untimely death by inducing her to choose their treatment with promises that it would cure her.

[06/09] Tindle v. Pulte Home Corp.
In plaintiff's suit against the builder of his new home for sustaining serious injuries when his foot and leg sank into a hole concealed underneath the sod in the backyard, district court's grant of defendant's motion for summary judgment is affirmed where: 1) summary judgment on plaintiff's vendor liability under Restatement (Second) of Torts section 353 claim was properly granted because plaintiff knew or had reason to know the condition and risk involved; and 2) plaintiff's claim also fails because he has failed to produce evidence that defendant knew or had reason to know of the dangerous condition at the time of the sale.

[06/08] Morton v. State
In a personal injury action arising out of work performed by plaintiff for New York Water Service Corporation, a private company that furnished water to portions of Nassau County, the appellate division's reversal of judgment for plaintiff is affirmed where: 1) whether a property owner benefits in any sense from the injury-related work was legally irrelevant to determining whether the Labor Law imposes a nondelegable duty; and 2) the water company was required to have in hand either a job-specific or an annual permit before undertaking excavation of the roadway, notwithstanding any exigency.

[06/08] El-Shifa Pharm. Indus. Co. v. US
In an action by the owners of a Sudanese pharmaceutical plant against the U.S. for unjustifiably destroying the plant, failing to compensate plaintiffs for its destruction, and defaming them by asserting they had ties to Osama bin Laden, dismissal of the action is affirmed where the political question doctrine barred plaintiffs' claims.

[06/07] Sheridan v. NGK Metals Corp.
In two putative class actions against multiple defendants, alleging negligence in connection with beryllium exposure and seeking a medical monitoring trust fund based on their increased risk of developing chronic beryllium disease (CBD), a grant of defendants' motion to dismiss is affirmed where: 1) the plaintiff cannot prevail because under Pohl, the threshold increase in risk to establish a medical monitoring claim under Redland Soccer remains at sensitization, a point along the exposure-to-disease continuum that plaintiff has not reached; 2) plaintiff failed to present sufficient evidence that, as a proximate result of the exposure, he has a significantly increased risk of contracting CBD; 3) because the underlying assertions in each action are the same, and because plaintiff could have brought a medical monitoring claim in the prior suit, the district court properly granted defendant's motion for judgment on the pleadings based on claim preclusion; and 4) district court properly granted defendant-engineering consultants' motion to dismiss for failure to state a claim upon which relief can be granted.

[06/07] In re: Sherwin-Williams, Co.
A defendant's petition for a writ of mandamus requesting that a district judge be recused from presiding over four cases against manufacturers of white lead carbonate pigments is denied as the petitioner has not established that a law review article co-written by the judge would make a reasonable, thoughtful, and well-informed observer question his impartiality.

[06/07] Miller v. Sanilac County
In plaintiff's 42 U.S.C. section 1983 suit claiming various constitutional violations against him during a traffic stop and arrest for several traffic code violations, civil infractions, including drunk driving, all of which were dismissed when plaintiff's blood alcohol level was determined to be 0.00%, a grant of defendants' motion for summary judgment is affirmed in part, reversed in part and remanded where: 1) summary judgment on malicious prosecution claims with respect to four of the seven tickets was properly granted because they constituted civil infractions, not criminal prosecutions; 2) grant of summary judgment with respect to a claim for unlawful search and seizure for a second blood test, and a state claim of gross negligence and municipal liability against a county were properly granted; 3) grant of summary judgment with respect to federal claims of malicious prosecution for criminal charges, unlawful arrest, and excessive force are reversed; and 4) grant of summary judgment with respect to state law claims of false arrest, false imprisonment, malicious prosecution, assault and battery are reversed.

[05/07] In re Odyssey Healthcare, Inc.
In plaintiff's negligence case against her employer, defendant's petition for writ of mandamus is conditionally granted as, the trial court abused its discretion by refusing to grant the defendant's motion to compel arbitration as the plaintiff failed to prove a valid defense against enforcement of her agreement to arbitrate disputes with her employer.

[05/07] City of Dallas v. Carbajal
In plaintiff's suit against a city for injuries sustained after driving onto an excavated road, judgment of the court of appeals is reversed and the case dismissed for lack of subject matter jurisdiction as, when a claimant fails to timely provide a governmental unit with formal notice of a claim, a police report noting the perceived cause of an accident does not provide a governmental unit with actual notice of its fault in causing the accident, and here, because the police report was at most an initial response to the accident, the city lacked actual notice.

[05/07] In re Ensco Offshore Int'l Co.
In plaintiff's suit, filed in Dallas County, against corporate owners of a drilling rig for her husband's death, who was an Australian citizen employed by an Australian company at the time of his death, is conditionally granted as the trial court abused its discretion by failing to dismiss the case on forum non conveniens grounds.

[05/07] Scott & White Mem'l Hosp. v. Fair
In plaintiffs' premises liability suit, the judgment of the court of appeals' in favor of the plaintiffs is reversed as, ice that accumulates naturally outside a business due to winter storm does not pose an unreasonable risk of harm.

[05/07] Zimmerman v. Anaya
Decision by the court of appeals, holding that a resident physician, working at a public hospital under an agreement with his private medical school, may not take an interlocutory appeal as though he were a state employee, is reversed as, under the Texas Health and Safety Code, a resident physician at a private medical school is to be treated like a state employee for purposes of section 51.014(5) when the underlying litigation arises from a residency program coordinated through a supported medical school at a public hospital.

[05/07] Klein v. Hernandez
Decision by the court of appeals, holding that a resident physician, working at a public hospital under an agreement with his private medical school, may not take an interlocutory appeal as though he were a state employee, is reversed as, under the Texas Health and Safety Code, a resident physician at a private medical school is to be treated like a state employee for purposes of section 51.014(5) when the underlying litigation arises from a residency program coordinated through a supported medical school at a public hospital.

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